Different forms of terrorist threats have existed across the Membership of the Organization of American States (OAS) (35 Member States) for decades. Despite this, it was not until 2001 that a renewed regional focus and momentum to confront terrorism was generated, which has not been matched by equal progress across the region to strengthen legal frameworks.
Shortly after the 9/11 terrorist attacks in 2001, the Foreign Ministers of the OAS adopted the Resolution on Strengthening Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism (RC.23/RES.1/01 (2001)). This included a "call upon all member states and the entire international community to take effective measures to deny terrorist groups the ability to operate within their territories". A central element of this objective is to strengthen regional and international counter-terrorism cooperation, whilst fully respecting the rule of law, human rights and democratic values. This resolution was followed immediately by another resolution adopted by the Foreign Ministers namely, Terrorist Threat to the Americas (RC.24/RES.1/01 (2001)), which declared that "these terrorist attacks against the United States of America are attacks against all American states", invoking the Inter-American Treaty of Reciprocal Assistance (para. 1).
The OAS has one regional anti-terrorism treaty, the Inter-American Convention against Terrorism (AG/RES. 1840 (XXXII-O/02)), which was negotiated and adopted following the 9/11 terrorist attacks in 2001 (adopted 3 June 2002, came into effect 6 July 2003). As at 26 June 2018, 24 out of 35 Member States have ratified the Convention. Key elements of the Convention include seeking to strengthen regional cooperation in the fight against terrorism, thereby enhancing hemispheric security; exhorting Member States to sign and ratify the relevant United Nations instruments against terrorism (in pursuance of Security Council Resolution 1373 (2001)); denying safe haven to suspected terrorists, both as refugees and asylum-seekers; increasing cooperation in border control and law enforcement; providing technical and legal assistance; and exchanging experience and training. Periodically, the OAS also adopts non-binding resolutions on security related issues, which encompass terrorism and counter-terrorism, such as the Declaration of San Salvador on Citizen Security in the Americas (adopted at the 41st OAS General Assembly on 7 June 2011).
In 1999, the OAS created the Inter-American Committee against Terrorism (CICTE) pursuant to the resolution on Hemispheric Cooperation to Prevent, Combat, and Eliminate Terrorism (AG/RES. 1650 (XXIX-O/99)). Its key objectives are to promote and develop cooperation among Member States to prevent, combat and eliminate terrorism, in accordance with the principles of the OAS Charter and the Inter-American Convention Against Terrorism, while recognizing full respect for the sovereignty of States, the rule of law, and international law. CICTE played a pivotal role in the drafting of the 2002 Inter-American Convention against Terrorism. It is composed of representatives drawn from across its Membership and holds one regular session each year as a forum for discussion and decision-making on counter-terrorism issues, measures, and cooperation. Its role is more facilitative than substantive, such as the provision of technical assistance to and capacity-building for Member States.
Key inter-American counter-terrorism instruments
The Inter-American human rights system came into being through the adoption of the 1948 American Declaration of the Rights and Duties of Man. This was the first international human rights instrument of a general nature, adopted on 2 May 1948, several months ahead of the Universal Declaration of Human Rights, which was adopted by the United Nations General Assembly on 10 December 1948 (see Module 3).
The inter-American human rights system is founded on the American Convention on Human Rights (American Convention), which was adopted on 22 November 1969 and entered into force on 18 July 1978. A significant impediment to its effective implementation and enforcement has been that only 25 of the 35 OAS Member States have ratified or acceded to the Convention. Of these, two States parties, Trinidad and Tobago (on 26 May 1998) and Venezuela (on 10 September 2012) have since denounced and withdrawn from the Convention, thereby reducing the number of States parties to 23. Consequently, not all OAS Member States formally abide by the same regional human rights standards (though of course they may still elect to do so voluntarily) or, perhaps most significantly, are subject to the jurisdiction of the IACtHR. The impact of this is mitigated, to some extent, by the fact that all OAS States are parties to the International Covenant on Civil and Political Rights (ICCPR), which, however, is not accompanied by a judicial enforcement mechanism.
In addition to the American Convention, the inter-American system has adopted a number of other legally binding treaties of potential relevance to regional and wider international counter-terrorism related challenges, e.g. in relation to migration and asylum matters where there is a concern that potential terrorists may infiltrate such groups. For example, the Preamble to the Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America (adopted in Mexico City on 16 November 2004), adopted to commemorate the twentieth anniversary of the 1984 Cartagena Declaration on Refugees, "[a]ffirm[s] that national security policies and the fight against terrorism should be framed within respect for domestic law and international instruments for the protection of refugees and of human rights in general". In 2014, the OAS adopted a Resolution on the Prevention and Reduction of Statelessness and Protection of Stateless Persons in the Americas (AG/RES. 2826 (XLIV-O/14) (2014)). The Resolution exhorts States parties to abide by their international obligations regarding statelessness, adopting or amending whatever domestic law is necessary to protect stateless people, including ensuring that adequate safeguards exist to prevent and reduce new cases of statelessness and to eliminate those that already exist. Such instruments are especially important in the counter-terrorism context when States are considering how best to respond to the phenomenon of returning Foreign Terrorist Fighters who pose a threat to their national security.
Key inter-American human rights instruments
As with the African regional system, the inter-American human rights system has two organs with competence to deal with human rights violations: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
Created in 1959 by the Council of the OAS and in operation since 1960, the Inter-American Commission on Human Rights (IACommHR) is an important, autonomous organ of the OAS which has the principal function of promoting the observance and defence of human rights in the American hemisphere. Since its creation, the Commission has benefited from subsequent revisions and augmentation of its mandate as well as of its accompanying powers.
The Commission is competent to examine petitions in which violations are alleged in relation to the human rights specified within the American Declaration, the American Convention and other inter-American human rights treaties. The Commission's work is further informed by other principles, notably the pro homine principle, whereby a law must be interpreted in the manner most advantageous to the human being (a principle unique to the inter-American system); the necessity of access to justice; and the inclusion of the gender perspective in all Commission activities. Additionally, it takes into consideration a number of other non-binding instruments that have been developed with the inter-American human rights protection system, such as the Inter-American Democratic Charter; the Declaration of Principles on Freedom of Expression; and Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas.
In terms of its key activities and related outputs, the Commission: receives, analyses, and investigates individual petitions that allege violations of human rights; observes the general situation of human rights in OAS Member States and publishes special reports, e.g., on human rights issues in specific States; makes on-site visits to Member States to conduct in-depth assessments of the general situation and/or to investigate a specific situation; recommends to Member States the adoption of measures that contribute to protecting human rights in the hemisphere; asks Member States to adopt "precautionary measures", as provided for by article 25 of its Rules of Procedure, to prevent irreparable harm of human rights in grave and urgent cases (see, e.g., IACHR: 2011, Res. No. 2/11; 2008, MC 259-02; 2006, Res. 2/06); submits cases to the Inter-American Court and appears before it during the processing and consideration of cases; requests advisory opinions from the Inter-American Court e.g. on points of law; and receives and examines communications in which one State party alleges that another State party has committed human rights violations recognized in the American Convention.
There are limitations on the Commission's outputs, such as their recommendatory nature. Nonetheless, they are influential, such as any of its determinations upholding allegations of human rights violations perpetrated by OAS Member States. In this regard, the Commission enjoys some discretion as to whether or not to publish its Merits Reports (i.e. determinations) on individual petitions received (pursuant to article 51(3) American Convention on Human Rights); these automatically become public if a case is referred to the Inter-American Court. These and other outputs, such as its publication of thematic reports on topical regional human rights issues, further assist in interpreting the provisions and scope of regional human rights instruments.
On occasion, the Commission adopts resolutions, such as its resolution on Terrorism and Human Rights (2001), which reiterated the importance of counter-terrorism measures, including criminal justice responses, being consistent with States' existing domestic law and international commitments. The Commission has also been apprised of migration issues which have had significant social and economic regional impact, e.g., in its Resolution 03/08 Human Rights of Migrants, International Standards and the Return Directive of the European Union. One issue of especial concern across the region is the welfare of children and adolescents who are often victims of different forms of violence which occur in their communities, attributable both to armed groups (which may be involved in organized crime and/or terrorism related activities) as well as by State officials responding to such violence. In this regard, the Commission published a report, Violence, Children and Organized Crime in 2015 (OEA/Ser.L/V/II, dated 11 November 2015). On occasion, the impact on children is used as a trigger by the Court to examine terrorism-related issues.
In addition, as with the United Nations and some other regional human rights systems, the inter-American system, through the Commission, has a number of thematic rapporteurs who have dealt with such issues as non-discrimination, basic due process and procedural safeguards, conditions of detention in immigration facilities, and the obligation to ensure that persons at risk of persecution are not returned to their countries, including in counter-terrorism related contexts.
The Inter-American Court of Human Rights (IACtHR) was established shortly after the American Convention on Human Rights came into force in 1979. It has jurisdiction over both adjudicatory as well as advisory cases regarding the application and interpretation of the American Convention. With respect to its judicial function, only the Commission and those States parties to the American Convention that have recognized the jurisdiction of the Court are authorized to submit a case to the Court and then only if the prior procedure before the Commission has been exhausted.
As a legal source, the Court has a well-established and influential body of case law which, like the jurisprudence of the other regional courts, is sometimes drawn upon to inform the development of legal instruments and to assist in the determination of cases outside of its own regional geographical area. The Court has been robust in its enforcement of the American Convention as well as other specialized human rights conventions within the Inter-American system. More generally, its jurisprudence has put pressure upon OAS Member States within its jurisdiction to increasingly incorporate international and regional human rights law obligations within their domestic legal orders, through constitutional, legal, jurisdictional, and political means.
Of particular note here, the Court has an established body of case law arising out of terrorism and wider security related cases. Its overall approach has been to review executive decision-making and practice on its individual merits within their particular context, and to reject any attempts to permit national security imperatives to erode the rule of law, such as any attempts to dilute the fundamental rights of suspected terrorists and not afford them full due process. As such, the Court has been clear, consistent and unequivocal in rejecting any rule of law excesses committed in the course of counter-terrorism responses and of any attempts to justify them in terms of circumstances of special gravity.
In particular, the IACtHR has focused on anti-terrorism criminalization; criminal proceedings (starting from investigations and ending with final appeals); and the execution of the sanctions imposed. For example, the court has emphasized the importance of both formal legality and substantive legality of any criminal offences that a State seeks to punish ( Petruzzi and others v Peru, 1999, paras. 117-120; Benavides v Peru, 2000, para. 156). In terms of the wider impact of its approach, this has resulted in some reviews of domestic criminal law definitions of terrorist behaviour; the exclusion of certain acts from criminal law definitions; emphasis on the importance of adhering to basic criminal justice guarantees, including those of due process and fair trial (especially the independence, impartiality, and competence of the court); and improvements in the conditions of detention and imprisonment. Furthermore, in furtherance of the obligations of all States parties under article 1(1) of the American Convention to safeguard human rights, the Court has rejected the legality of self-amnesty laws ( Petruzzi and others v Peru, 1999, para. 103), since these may conceal and facilitate impunity gaps for serious deeds committed in the context of the fight against terrorism, thereby denying victims of access to justice and reparations.
Despite such encouraging progress to strengthen the rule of law framework in relation to regional counter-terrorism approaches, the Court recognizes that it still has much work to do in this regard. Its priority areas include revising national definitions of terrorism, especially those ones which are unduly broad and/or ambiguous (see, e.g., United Nations, OHCHR, South American Regional Office, 2017); reviewing, reforming, and strengthening domestic procedural systems, especially the investigation and subsequent prosecution of terrorist offences; and, ultimately, eliminating the many different forms of human rights violations which occur under the guise of counter-terrorism (see Module 14).